The Sixth U.S. Circuit Court of Appeals has before it a most important case for the future of billboard advertising and the regulation of billboards. That case is Thomas v. Schroer.
William Thomas has placed billboards in Shelby County, Tennessee, that contain noncommercial messages. For example, he placed one billboard that had a picture of U.S. Olympics rings. He placed another sign containing a picture of the American flag. Since at least 2006, state officials have sought to remove Thomas’ signs for failure to comply with Tennessee’s billboard law known as the Billboard Regulation and Control Act of 1972.
In September 2017, a federal district court judge ruled that Tennessee’s Billboard Regulation and Control Act of 1972 was an unconstitutional, content-based restriction on speech. The billboard law makes distinctions between off-premise billboard advertising and on-premise billboard advertising. The law also treats commercial billboards arguably better than billboards containing noncommercial speech.
For these reasons, the federal district court judge ruled that the billboard law violated the general principle against content discrimination, as explained and extended by the U.S. Supreme Court in Reed v. Town of Gilbert (2015).
In Reed, the Supreme Court invalidated an Arizona town’s ordinance that imposed different requirements on signs based on their content – whether they were ideological, political, or temporary directional signs. The Court reasoned that the law was content-based even though the town’s purpose was seemingly content-neutral.
Under the Court’s content discrimination principle, content-based laws are evaluated under strict scrutiny – the highest form of judicial review. Under this standard, government officials must show that a law advances a compelling, or very strong, interest in a way that restricts speech in the least restrictive way possible. This is a difficult legal standard to meet.
In Thomas v. Schroer, the Sixth Circuit presumably will determine first whether Tennessee’s Billboard law is content-based or content-neutral. The federal district court, as noted above, found the law clearly content-based: “The Billboard Act imposes location, permit, and tag requirements on signs, unless they qualify as an exception or exemption. The language of the Billboard Act requires one to assess the sign’s content to determine if it is exempt.”
The appeals court could determine that the law principally concerns commercial speech and evaluate the law under the Court’s commercial speech jurisprudence. However, even under the Court’s commercial speech doctrine the law must pass intermediate scrutiny.
Many civil liberties groups have filed amicus briefs before the Sixth Circuit. For example, the Cato Institute has filed a brief, explaining that Tennessee’s billboard law doesn’t even pass intermediate scrutiny.
According to the Cato Institute, Tennessee’s Billboard law advances only two real interests – traffic safety and roadway aesthetics. It is difficult to see how certain billboards impact traffic safety or aesthetic interests just because of their content.
Cato forcefully writes that “[w]hile distracted drivers and roadway aesthetics are legitimate state concerns, they are not advanced by distinguishing between on-premises and off-premises signage.” The law does not appear to be rational in determining whether a billboard sign is considered on-premise or off-premise. The groups writes that the law’s “differential treatment of sign owners’ communicating virtually the same information bears no meaningful relationship to Tennessee’s interests in traffic safety and roadway aesthetics.”
Ultimately, the Sixth Circuit’s decision is very important, because as the U.S. Supreme Court declared in Metromedia v. City of San Diego (1981): “Billboards are a well-established medium of communication, used to convey a broad range of different kinds of messages.”